Showing papers in "Law and contemporary problems in 2012"

Defining the Space of Transnational Law: Legal Theory, Global Governance and Legal Pluralism

Abstract: This chapter coins the perspective between "national" and "global" governance challenges as "transnational", in order to offer a bridge between these separately pursued research agendas. It traces the emergence of border-crossing regulatory regimes as a challenge to state-oriented legal reasoning. The chapter illustrates the parallels between the impasses of legal theorising about "global" or "transnational" governance with those that marked the evolution of law in the nation state. It proposes the emergence of "transnational law", and sets out the framework of transnational legal pluralism. It contends that globalisation does not pose the first advent of a "crisis of law", understood as a tool of regulation. Instead, the varied history of law reveals the intricate combination of hubris and fragility, violence and vulnerability that underlies the idea and experience of law. Keywords:globalisation; governance; legal pluralism; transnational law

Blaming as a Social Process: The Influence of Character and Moral Emotion on Blame

Abstract: I INTRODUCTION When we assign blame for something bad that happened, we are doing something social--we are identifying another human being who caused harm, without justification or excuse. A window broken by a hurricane elicits a story about cause, but not a story about blame; a window broken by a person elicits blame attribution. Once a human agent is identified, we naturally turn our attention to blame severity, a complex judgment shaped by several different concerns. A window broken by a child's stray baseball is assessed differently from a window broken by a vandal, or by a burglar, or by a white supremacist. Assessing blame involves not only determining the badness of the harm (for example, property damage versus injured person), but also the badness of the actor's mental state (for example, accident versus intentional), and perhaps even the badness of the actor's motive (for example, general destructiveness versus racial hatred). When viewed this way, we see that blame--as a psychological matter--involves attributions about other people and the extent to which they intend to harm us or otherwise pose a threat to the social order. In this sense, blaming is social because it is about attributions of other people and their intentions. The law takes account of each of the blame dimensions just mentioned. The criminal law reserves more severe offense categories for more severe harm. It imposes more serious liability when mens rea is more culpable, all else being equal. And sometimes, as is the case with hate crimes, it explicitly takes into account the actor's motive for causing harm. But there is another possible influence on blame not yet mentioned--an influence which the law has sought to minimize. The moral character of the actor, apart from that actor's motive or reasons for acting, might play an important role--as a descriptive matter--in the psychological process of blame. Yet, for the most part, the law eschews the role of moral character in legal blame. (1) In a previous article, my colleague and I explored empirically the question of motive for acting, and how it produces inferences about moral character that influence blame judgments. (2) By contrast, the first overarching goal of the current article is to provide experimental evidence supporting the hypothesis that psychological blame is influenced by perceptions of the actor's overall virtue or lack thereof, even apart from the actor's reason for acting in the specific instance. This article marshals experimental evidence to support the idea that a person with a flawed moral character is blamed more for causing harm than a person who is otherwise virtuous. Thus, we are likely to blame more severely a drug-addicted high school dropout who knocks down ten rural mailboxes with a baseball bat than an A-student who is on the chess team who engages in the same action. Similarly, we are likely to blame more severely an abusive parent who drives recklessly and unintentionally hits a pedestrian than a model parent who performs the same act with the same mens rea. The experiment reported here implements a rigorous test of this hypothesis and shows that even mildly unpleasant character traits, such as unreliability, can lead observers to blame more harshly, and to bolster these harsh blame judgments with increased perceptions of the actor's causal role and his intent to cause harm. The findings reported here echo research examining criminal cases suggesting that the defendant's prior criminal record can influence jury verdicts. For example, in cases where evidence is weak, there is a positive correlation between the jury learning that the defendant had committed prior crimes and the likelihood of conviction. (3) This suggests that in the absence of compelling evidence tending to prove guilt, juries sometimes use the fact that defendants had committed prior crimes as a reason to think they might be guilty of the crimes in question. …

Public perceptions of white collar crime culpability: Bribery, perjury, and fraud

Abstract: We are accustomed to thinking of "crime" as involving the most blameworthy and antisocial sorts of conduct in which citizens can engage, conduct that is clearly and unambiguously more wrongful than conduct that is not criminal. But the reality is more complex, especially when we look at certain kinds of "white collar" behavior. One of us (Green) has previously undertaken an in-depth investigation of the underlying moral concepts that distinguish white collar crime from "merely aggressive behavior." (1) This work attempted to differentiate, for example, between criminal fraud and "sharp dealing," insider trading and "savvy investing," bribery and "horse trading," tax evasion and "tax avoidance," extortion and "hard bargaining," witness tampering and "witness preparation," and perjury and "wiliness on the witness stand." (2) Such analysis often depended on fairly fine-grained distinctions in moral reasoning. The problem is that the ability of criminal law to stigmatize, to achieve legitimacy, and to gain compliance ultimately depends on the extent to which it enjoys moral credibility and recognition in the broader lay community. (3) If legally significant distinctions between fraud and non-fraud--or perjury and non-perjury--can be discerned only through abstract philosophical reasoning, it is reasonable to wonder whether the public will lend these distinctions the moral weight required for the law to be effective and legitimate. This paper seeks to determine the extent to which the lay public's moral intuitions parallel the law in distinguishing between white collar crime and related non-crime by focusing on three domains of conduct: (1) bribery and gratuities; (2) perjury and false statements; and (3) fraud. These types of conduct are of practical significance and reflect the kind of moral ambiguity that is characteristic of white collar crime. This paper examines each category to determine where the lay public would draw the line between criminality and non-criminality; and, where such conduct is regarded as criminal, how it would be graded. The analysis aims to identify the extent to which public perceptions are consistent or inconsistent with current law. Our studies found that lay persons, in general, are comfortable making fairly fine-grained distinctions regarding the law of white collar crime. In some cases, the distinctions made by out respondents were consistent with current law; this should lend weight to the view that the law in these areas draws distinctions in the appropriate places. Participants in the fraud study, for example, were comfortable distinguishing between misrepresentations that went to the heart of the bargain and those that were extraneous. Elsewhere, however, we found significant divergence between the views of our lay subjects and current law. In the case of perjury, for example, lay participants were less likely than the law to distinguish between lying in court under oath and lying to police while not under oath, and between literally false statements and literally true but misleading statements. Similarly, with respect to bribery, participants' views diverged significantly from current law. For example, respondents sought to criminalize both commercial bribery and payments accepted by an office-holder in return for performing a non-official act, despite the fact that neither form of conduct is a crime under current American federal law. I PREVIOUS STUDIES OF COMMUNITY ATTITUDES REGARDING WHITE COLLAR CRIME It is often said that those who commit white collar crimes are subject to less severe punishments than those who commit street offenses. (4) The usual implication seems to be that such disparities are somehow unjust. (5) But, on reflection, it should be clear that treating a white collar crime less severely than a street crime would be unjust only if the white collar crime in question was no less blameworthy than the corresponding street crime. …

Hauerwas, Liberalism, and Public Reason: Terms of Engagement?

Abstract: I INTRODUCTION As a theologian, Stanley Hauerwas offers a powerful Christian social critique of our politics, law, and public culture, emphasizing the perceived philosophical shortcomings of liberalism. Although I am neither a Christian theologian nor a student of Christian theology, I recognize that Hauerwas is an important, often penetrating, social critic. Nevertheless, his philosophical account of the alleged shortcomings of liberalism frequently misfires. Many of Hauerwas's substantive moral concerns seem to me quite salutary: he opposes our increasingly warlike foreign policy; he calls attention to the plight of African Americans, the poor, the disabled, and the marginalized and excluded generally, seeking to mobilize people to work on their behalf. He expresses concern with sexual permissiveness, abortion, and the decline of lifelong marital commitment. He seems to me obviously correct in his effort to remind Christians that the example of Jesus and his cross should challenge us to question the rampant materialism, consumerism, and self-concern that characterize our popular culture. While I disagree with some of his specifics--his strict pacifism for example--these substantive criticisms all seem to me constructive contributions to public moral discussion. However, Hauerwas's concerns with the reigning public moral culture are frequently aligned under a general philosophical characterization of liberalism--and liberal law and politics--that seems to me caricatured and unhelpful. The very fact that he uses the shorthand of "liberalism" to describe the dominant culture is decidedly misleading for a number of reasons. To begin with, many historical and cultural forces besides liberalism have influenced American politics and culture. (1) Moreover, the term "liberalism" can be used to cover a range of different and even opposed political positions. Our politics is increasingly libertarian and conservative--or, "classical liberal" if you will--and it drifts ever further from the concern with social justice that has been the hallmark of egalitarian liberalism for decades. Hauerwas ascribes to liberalism a variety of abstract philosophical commitments that have little, or nothing to do with the theory and practice of liberal constitutionalism and politics. (2) With respect to his substantive moral concerns, Hauerwas writes mainly as an anti-accommodationist Christian--that is, in opposition to Christians accommodating themselves to the dominant culture. He complains that people have misunderstood him as a "theological and political reactionary." (3) While he obviously is not that, the confusion is understandable, and his jaundiced view of liberalism may well aid the forces of political reaction, as Jeffrey Stout has also suggested. (4) To adequately assess liberalism, and to constructively address the social and political problems that trouble Hauerwas, we need a livelier appreciation than Hauerwas offers of the practical contributions of liberal justice, rights, and constitutional institutions. As I have said, I am neither a theologian nor a Hauerwas scholar. He writes primarily as a theologian speaking to his fellow Christians about Christianity. I am a political theorist who sympathizes strongly with the liberal political tradition, properly understood. We are both concerned with our shared political project and its justifiability, so that will be my focus here. II THE LIBERAL CORE AND IDEAL "Liberalism" is a capacious term: the liberal tradition is complex and multi-stranded, or as Hauerwas himself has described it, "a many-faced and historically ambiguous phenomenon." (5) There are various reasonable ways of characterizing it. I understand liberalism's moral core to be the emphasis on the political importance of equal basic individual rights. Persons are understood, in their political capacity, as free and equal, and an urgent political imperative is to secure citizens in their basic interests understood in the language of rights and justice. …

Of Icebergs and Glaciers: The Submerged Constitution of American Healthcare

Abstract: I INTRODUCTION The United States is presently in the midst of a fractious and polyphonic debate about the future shape of its healthcare finance and delivery system. Spurred in significant part by the controversial passage of a major federal health insurance statute two years ago, this debate implicates foundational questions of government authority and constitutional limitation that have transcended the traditional boundaries of health law. Although in many respects it is an incomplete and unfinished reform, the Patient Protection and Affordable Care Act (ACA) (1) manifests a new congressional focus on insurance regulation and expanded access and raises significant questions about, and opposition to, the increased role of the federal government and the new federal and state bureaucracies that the Act creates. As with other episodes of transformative legal restructuring in the United States and elsewhere, the ACA (or more accurately, the future transformation of medical care delivery that it may portend) has provoked vigorous opposition in legal and political discourse. And also, as with earlier episodes of constitutional transformation, this dissent sounds in multiple registers and employs different oppositional vernaculars and diverse institutional levers in an effort to thwart the full implementation of the ACA's regulatory measures. The most visible strand of this opposition is the multifaceted litigation against the constitutionality of the individual mandate that has proceeded in various federal courts around the country and is presently before the U.S. Supreme Court. Couched within the familiar decisional forum of the federal courts, the litigation offers the prospect of a determinate institutional statement on the question of the individual mandate's constitutionality within a reasonably predictable time frame. No such institutional centrality or prospect of finality exists in the roiling popular opposition to the ACA and related health reforms that are playing out in various extrajudicial for a. Clearly the ACA's wisdom and its constitutionality will be a major issue in the national popular election of 2012 and most likely those of 2014 and 2016 as well. Opposition to the Act has already manifested in profligate state legislative and referendum activity: By my count, in the fall of 2011 there were 197 separate state statutes or referenda pending in the fifty states, many bearing evocative titles like Missouri's "Big Government Get Off My Back Act," (2) which purports to exempt small businesses from enforcement of various state and federal mandates. This immediate popular opposition is important and interesting, and treated in nuanced fashion in several other papers in this symposium. (3) My aim in this short article is to place the current constitutional litigation in an even broader frame of reference than that of the present day's popular constitutionalism. Taking a much longer temporal view, it is possible to regard the current debate over the ACA as but one episode in an ongoing process of legal and normative construction and contestation about the proper locus of authority in American medicine that stretches back well into the nineteenth century. Like the small portion of an iceberg visible above the waters, the current ACA litigation is merely the most visible and immediately salient manifestation of much more enduring public concerns about institutional intrusion on individualistic choice in medical care. The embrace of highly diffuse authority over medical decisions has long been prioritized by patients and physicians, and will continue to hold a powerful sway over public attitudes long after the dust has settled on this episode of litigation. Yet the fragmentation and resistance to institutional control--whether public or private institutions--that has for years characterized the healthcare delivery system in the United States is becoming increasingly unsustainable and problematic. …

On the Mental State of Consciousness of Wrongdoing

Abstract: I INTRODUCTION In the adjudication of white collar crime, a conceptually challenging mental state is on the rise. The idea is that an actor's "consciousness of wrongdoing" (or awareness of guilt, or like formulations) is a determinative factor in imposing criminal liability. This facially broad standard turns out to hold promise for adjudicators and enforcers compelled to cope with a central problem of white collar offenses: how to identify specific behaviors meriting criminal punishment from within realms of social and economic activity that, viewed as a whole, are unobjectionable and often beneficial. This mental state formulation cannot hope to deliver on that promise, however, without managing a central problem of evidence and adjudication: how to "find" a particular form of mental state within a system that is full of risks of error arising from the psychological and narrative processes that powerfully influence criminal inquiries and trials. There are reasons to think the concept of consciousness of wrongdoing is particularly fraught with error risks, but also grounds for concluding that its benefits as a liability-sorting device might prevail over its riskiness in the hands of adjudicators--if those risks are properly understood and managed. The discussion here has the twin aims of explaining the concept and function of consciousness of wrongdoing as a mental state in white collar crime, and exploring how that concept might operate, to beneficial or harmful ends, in the American system of adjudication. First, an explanation of how the idea of consciousness of wrongdoing fits within the basic framework of substantive criminal law is warranted. The problem of mistake of law as a defense to criminal liability is generally treated as two-sided. On one side is the maxim that "ignorance of the law is no excuse." This stands for the general rule, reflected in all Anglo-American law, that an actor's claim that she did not know her conduct was prohibited by the criminal law is irrelevant to her liability. (1) On the other side are the limited exceptions to this rule. If the crime itself requires knowledge of the law as an element of the offense, lack of such knowledge of course negates liability. (2) If error about a legal matter--for example, whether one has lawful possession of property under her jurisdiction's contract law--negates a mental state required for liability--for example, specific intent to deprive another of property--then such error or ignorance prevents conviction. (3) If the law, directly or through official spokespersons, states that conduct is not criminal, liability for such conduct may not be imposed due to a principle of estoppel. (4) Finally, if criminalization of conduct comes so far out of left field as to be a truly alarming surprise to any responsible citizen, the Constitution (perhaps) prevents imposition of liability for that conduct. (5) This standard framework for dealing with legal knowledge captures only two sides of a broader, four-sided problem. Stated more generally, the problem is not what to do with claims of "mistake of law," but what to do in general about an actor's mental state regarding the normative valence of her actions. That mental state can consist in an actor adverting to the normative significance of her actions, or in her failing to advert to such matters. The possibilities, and their respective doctrinal manifestations, are represented in the following rubric: Table: Mental State as to Normative Status Inculpatory Exculpatory Actor does not (1) Ignorance of the (2) Limited mistake- believe normatively law is not a defense. of-law defenses wrongful, or has no recognized. belief about normative status Actor believes (3) "Consciousness of (4) Mistaken belief normatively wrongful wrongdoing" or about illegality or "guilty knowledge" is wrongfulness does not a basis for imposing support liability. …

Immunizing Against Bad Science: The Vaccine Court and the Autism Test Cases

Abstract: I INTRODUCTION Despite assurances from healthcare providers, questions about vaccine safety remain in the media spotlight and public debate, particularly the concern that vaccines cause autism. Since 2002, the federal court that hears vaccine-injury disputes--commonly called the Vaccine Court--has been at the center of a debate about whether vaccines cause autism. (1) The year 2010 marked the conclusion of six cases selected to test the validity of theories about how vaccines cause autism. (2) In August 2010, a final decision was rendered in the last unresolved test case, Cedillo v. Department of Health & Human Services. (3) In Cedillo, the Federal Circuit affirmed the Vaccine Court's finding that the petitioner neither presented a viable theory about how vaccines cause autism, nor proved that the petitioner's vaccination caused her autism. This decision affects approximately five thousand similar autism claims pending in the Vaccine Court. (4) Many families involved in these claims assert that the test cases satisfied the court's unique standard of proof, whereas the federal government argues that the cases failed to meet even a low standard. (5) In light of the complex, competing scientific claims considered by the court, the autism test case decisions raise significant "science and law" issues. (6) Throughout the autism test cases, there has been an overarching concern that a decision to deny entitlement will result in a flood of autism claims in state courts. But considering current scientific and medical knowledge, the concern over autism cases moving into the civil sphere is likely overstated. Instead, attention should be paid to how these autism claims reflect a broader concern: a loss of public trust in vaccines. The conclusion of the autism test cases is an opportunity to review the success of the vaccine-injury program and its relationship to U.S. vaccination practices. Part II of this note traces the history of vaccine-injury suits in the United States, the creation of the Vaccine Court, and how vaccine-injury claims are proven in the court. Part III introduces the vaccine-autism controversy and the Vaccine Court's decision to institute an omnibus proceeding to manage the autism claims. Part IV provides an overview of the omnibus autism proceedings, focusing on the Cedillo case. Part V sets forth an argument that the autism test cases demonstrate how the current standard of proof in vaccine cases trends too much toward awarding compensation and away from science. Vaccine Court decisions are unlikely to restore public trust in vaccines, but the decisions can contribute to public misperceptions. Compensating too many undeserving petitioners undermines the integrity of vaccine safety. Accordingly, this threatens to create a public health problem: If the standard of proof in the Vaccine Court is too low, the court implicitly validates public fears about vaccines and impacts public willingness to get vaccinated. To maintain public trust in vaccines, the standard of proof in the Vaccine Court must be clearer and more scientifically rigorous. II THE HISTORY OF VACCINE LITIGATION AND POLICY A. Vaccine-Injury Lawsuits in the United States Every state legally requires that children receive certain immunizations before attending school or daycare. (7) Many states provide medical, religious, and even philosophical exemptions to vaccination requirements. (8) Nevertheless, most children in the United States today receive routine immunizations against fourteen diseases. (9) In rare cases, vaccines cause serious and even fatal side effects. (10) These side-effects can occur even if vaccines are produced and administered properly. (11) In the mid- to late 1980s, there was a significant increase in the number of vaccine-injury suits against vaccine manufacturers, (12) possibly attributable to heightened media coverage at the time about the risks of vaccinations. …

Corrupt Intentions: Bribery, Unlawful Gratuity, and Honest-Services Fraud

Abstract: I INTRODUCTION This article advances the understanding of bribery and related offenses from an economic standpoint. (1) Economic theory holds that the legal system should impose criminal liability on a person who advances his goals by using force or artifice instead of a voluntary exchange. Force and artifice are inherently coercive behaviors, unresponsive to the market mechanisms that put exchange prices on what people want to achieve. Because market mechanisms cannot control such behaviors, the state should step in and impose criminal punishments on the perpetrators. These punishments should discourage future coercive behavior. Therefore, they ought to be high enough to offset the benefits that perpetrators expect to gain from acting coercively against other people's interests. (2) Bribery and related offenses have a uniform structure: A public official receives something of value from a private person in exchange for acting or promising to act to the private person's benefit. Any such transaction divides between the parties some asset or opportunity belonging to the government. The private person derives profit from misappropriating or obliterating the government's interest and gives part of this profit to the public official. Any such transaction is necessarily coercive toward the government. For, as a consequence of the official's betrayal, the government suffers a deprivation of its interest, asset, or opportunity. Both parties to this transaction gain from bypassing the market. Each of them generates an off-market benefit not obtainable through voluntary exchange and the system of rules governing that exchange. (3) Presence of this two-sided off-market benefit separates bribery and related offenses from noncriminal transactions and, in particular, from noncriminal--but still unethical--violations of the various conflict-of-interest rules. This market-focused criterion helps identify evidence that conclusively establishes the mens rea and the actus reus for bribery and related offenses. This criterion also helps identify the proper scope of the honest-services fraud offense. In two precedential decisions, Sun-Diamond (4) and Skilling, (5) the Supreme Court has narrowed the government's ability to prosecute individuals for those offenses. In Sun-Diamond, it held that proof of bribery and unlawful gratuity incorporates the government's duty to identify the specific official act for which the bribe or gratuity was given. (6) In Skilling, the Court decided that presence of a bribe or a kickback payment is one of the elements of honest-services fraud under 18 U.S.C. [section] 1346. (7) This interpretation created an overlap between bribery and unlawful gratuity on the one hand, and honest-services fraud on the other. (8) By creating this overlap, the Court introduced the stringent requirement for establishing mens rea, set up in Sun-Diamond, into the definition of honest-services fraud. These narrow interpretations of core corruption offenses have removed the threat of criminal responsibility from a wide variety of off-market transactions that benefit public officials and private individuals at the government's expense. By adopting these interpretations, the Court undercut Congress's anti-corruption policies and weakened the deterrence against corruption. Under my "two-sided off-market benefit" criterion for identifying criminal corruption, these interpretations are economically misguided and therefore wrong. This article proceeds as follows. In Part II, I carry out an economic analysis of bribery and related offenses and identify their common characteristic: presence of an off-market benefit on both sides of the illicit transaction. In Parts III and IV, respectively, I use this analysis to demonstrate that the Supreme Court's precedential decisions in Sun-Diamond and Skilling are mistaken. A short conclusion follows. II THE ECONOMICS OF BRIBERY The economic approach to law calls for an imposition of criminal liability upon people who act coercively, and only upon those people. …

A Mandate for Mandates: Is the Individual Health Insurance Case a Slippery Slope?

Abstract: I INTRODUCTION The 2010 Patient Protection and Affordable Care Act's (1) individual mandate has given rise to one of the most important constitutional disputes in recent decades. It requires that most Americans purchase health insurance by 2014. (2) Twenty-eight states, the National Federation of Independent Business, and numerous private parties have filed lawsuits arguing that the mandate exceeds Congress's powers under the Constitution. (3) As this article goes to press, the Supreme Court has granted certiorari and will likely issue a decision in the summer of 2012. No matter who wins, the decision is likely to set an important precedent. Both sides in the mandate litigation have argued that we will be sliding down a dangerous slippery slope if their opponents prevail. Opponents of the mandate argue that a decision upholding it would give Congress unlimited power to impose mandates of any kind. (4) That includes the much-discussed broccoli purchase mandate postulated by Federal District Judge Roger Vinson, the author of one of the three district court opinions striking down the mandate. If the mandate were upheld, he explains, "Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and ... put less of a strain on the health care system." (5) Such slippery slope concerns have been prominently emphasized in three of the four federal court decisions striking down the law. (6) For their part, defenders of the mandate have advanced their own slippery slope scenarios, claiming that a decision striking down the mandate would imperil major Supreme Court federalism precedents, restore the much-reviled Lochner v. New York, (7) and prevent Congress from enacting potentially vital regulatory legislation in the future. (8) Despite the prominent role of slippery slope arguments on both sides of the case, the extensive academic commentary on the mandate litigation does not yet include anything approaching a comprehensive analysis of this aspect of the dispute. This article seeks to fill the gap in the literature. It examines both sides' slippery slope arguments in detail, assessing their coherence and plausibility. A legal slippery slope argument has two distinct components: logical and empirical. (9) A logical slippery slope occurs if judges cannot coherently distinguish A from B--for example, a health insurance purchase mandate from any other mandate that Congress might enact. It should be noted that a logical slippery slope argument need not concede that A is justifiable in and of itself and is only constitutionally suspect because it leads to B. Rather, the constitutionality of A is dependent on the quality of the reasoning justifying it. If the only available argument in its favor is defective because it inevitably also justifies something clearly unconstitutional, such as B, then A is impermissible in its own right for lack of a sound argument in its favor. In addition, a logical slippery slope can exist even in a situation where the reasoning justifying A in and of itself justifies B without the need for further extensions of the argument in later decisions. If, for example, the individual mandate is upheld in a decision that explicitly states that Congress can enact any mandate of any kind, it is still coherent to refer to this as a slippery slope, since upholding A (the individual mandate) has still led to a justification of B (all other mandates). Obviously, the slope in this scenario is slipperier and steeper than in a situation in which the permissibility of B is not fully clear until after one or more additional cases have been decided. Many slippery slope arguments proceed on the assumption that the lack of a logical distinction between A and B is enough to prove that a serious danger exists. …

More Problems with Criminal Trials: The Limited Effectiveness of Legal Mechanisms

Abstract: I INTRODUCTION Criminal adjudication is a core feature in American public life. Trials are considered "the central institution of law as we know it," (1) the "crown jewel" of the legal system. (2) Amidst its multiple purposes, an essential objective of the criminal trial is to determine facts pertaining to the defendant's guilt. Specifically, the trial is designed to serve the diagnostic function of distinguishing between factually guilty and innocent people. The prevailing sentiment within the American polity and legal profession is that the trial is indeed acutely diagnostic. (3) This traditional truism, however, is being challenged by the mounting revelations of false convictions. (4) This article follows in the heels of an article entitled The Limited Diagnosticity of Criminal Trials (Limited Diagnosticity). (5) Both articles pertain to parts of a larger critique of the criminal justice process that will be published in a book manuscript In Doubt: The Psychology of the Criminal Justice Process (In Doubt). (6) Limited Diagnosticity examined how good fact finders are in determining facts from the types of evidence presented in criminal trials. In other words, how well do juries and judges perform the diagnostic function of distinguishing between factual guilt and innocence? To address this question, that article applied a body of experimental psychological research pertaining to the performance of the tasks involved in the adjudicatory process. (7) As suggested by its title, Limited Diagnosticity concluded that the cognitive processing involved in discovering the truth in difficult cases is more complex and less reliable than generally believed. (8) One problem with the diagnosticity of criminal adjudication stems from the fact that the evidence that is typically presented in criminal trials is of uneven, and often low, quality. The problems with the integrity of the evidence begin with the fact that criminal investigations are not conducted through best-practice procedures. Courtroom testimony is usually proffered months, sometimes years, following the criminal event, a period during which witnesses repeatedly interact with the criminal process and are subjected to a variety of contaminating sources. As a result, the "raw evidence" perceived by the witness at the criminal event often undergoes editing, embellishment, and alteration. Determining the facts accurately from this "synthesized evidence" is a daunting task, especially given the opacity of the investigative process. Second, the research examined in Limited Diagnosticity indicated that even if the evidence was reliable, drawing the correct inferences from the most common types of evidence presented in criminal trials is a difficult feat. People have a difficult time judging whether a witness identified the perpetrator correctly, whether a witness's memories of an event are accurate, and whether confessions obtained in police interrogations offer truthful accounts of the suspect's deeds. The research also indicated that alibi testimony can be hard to produce and is often misleading, and that detecting deceit from people's demeanor is often mistaken. Third, the fact finding task is further hindered by a variety of factors that are inherent to the environment of criminal trials. These include the excessive persuasive attempts by lawyers, exposure to extra-evidential information, the emotional arousal that accompanies many criminal trials, and racial stereotypes. Another hindrance stems from the fact finder's cognitive process itself, namely, the "coherence effect." (9) Fact finders tend to overestimate their performance on the fact finding tasks and to underestimate their susceptibility to biasing factors. In sum, Limited Diagnosticity concluded that factual findings in criminal trials are bound to contain an appreciable level of inaccuracy and they are also vulnerable to manipulation. While faulty factual determinations can result in dropped charges against truly guilty people and even wrongful acquittals, they lead mostly to the prosecution of innocent people. …

Arbitration of Investors' Claims against Issuers: An Idea Whose Time Has Come?

Abstract: I INTRODUCTION Arbitration of investors' claims against issuers is "an idea whose time has come" for over twenty years, ever since the U.S. Supreme Court, in Shearson/American Express, Inc. v. McMahon (1) and Rodriguez de Quijas v. Shearson/American Express, Inc., (2) overturned long-standing precedent and held that arbitration provisions contained in brokerage customers' agreements were enforceable with respect to federal securities claims. After these decisions, as arbitration before the self-regulatory organization (SRO) forums became the customary method of resolving disputes between individual investors and brokerage firms, some academics and practitioners suggested the use of mandatory arbitration to resolve investors' claims against publicly traded issuers. Proposals were floated to include in an issuer's governance documents a provision that would require arbitration of investors' claims against the issuer. (3) A second round of proposals was advanced in the post-PSLRA (Private Securities Litigation Reform Act of 1995) deregulatory climate. (4) All proponents emphasized the traditional benefits of arbitration, namely, a faster, less expensive, and more flexible process in which arbitrators possessing expertise in the subject matter resolve the parties' dispute. Many also advocated for arbitration as an antidote to perceived abuses of federal securities class actions. (5) To date, however, publicly traded domestic issuers and their counsel have not seriously pursued these proposals, probably because of several legal obstacles to implementation. First, there is doubt about the legality and enforceability under state corporate law of an arbitration provision contained in an issuer's governance documents. (6) Second, there is also doubt whether an issuer's governance documents are commercial contracts within the meaning of Federal Arbitration Act (FAA) [section] 2. (7) Third, the Securities and Exchange Commission (SEC) has never repudiated its staff position that an arbitration provision in a publicly traded issuer's governance documents would violate the anti-waiver provisions of the Securities Act of 1933 (8) and the Securities Exchange Act of 1934. (9) Recently, however, these legal obstacles may be eroding. First, while there continues to be uncertainty about the legality and enforceability of arbitration provisions contained in corporate governance documents, a recent Delaware Chancery Court opinion suggests that certificates of incorporation of publicly traded Delaware corporations could include arbitration clauses that would bind shareholders at least with respect to state fiduciary duty claims. (10) Second, it is possible that even if Delaware courts held such arbitration provisions unenforceable, other courts could conclude that they were enforceable under the FAA, which would preempt the state law. (11) Third, the SEC may find it difficult to maintain its opposition to arbitration provisions in governance documents in light of the fact that a number of foreign private issuers whose securities are traded in the United States have such provisions in their governance documents. (12) Apart from these legal obstacles, publicly traded issuers may not have previously perceived significant advantages to arbitration. Indeed, with respect to high-stakes "bet-the-company" disputes, such as securities class actions, litigation may be preferable. (13) First, the very narrow grounds for judicial review of arbitration awards may make the risk of an aberrational award unacceptably high. (14) Second, specifically with respect to federal securities claims, because the PSLRA imposes significant obstacles on plaintiffs, it was hard to see how relocating securities class actions from a court to a more flexible, less law-oriented arbitration forum would provide any advantages to corporate defendants. Finally, issuers could expect that adoption of an arbitration provision would expose them to criticism from investor advocates and negative publicity. …

Popular Constitutionalism and the Underenforcement Problem: The Case of The National Healthcare Law

Abstract: I INTRODUCTION Contemporary constitutional theory draws an important conceptual distinction between the Constitution itself and the doctrinal rules that the courts employ to enforce it. (1) Constitutional doctrine implements constitutional principles--often by developing doctrinal "tests" that help courts determine when some other actor has acted in a constitutionally impermissible way. The "tiers of scrutiny" that dominate modern equal protection doctrine, (2) for example, do not appear in the text of the Fourteenth Amendment; rather, they are judicial constructs that help courts implement the Amendment's requirements in particular circumstances. Courts fashioning such doctrine must pay attention not only to the meaning of the underlying constitutional principle, but also to various institutional factors, including inherent institutional constraints on judicial decisionmaking that stem from the nature of judicial legitimacy, the institutional capacities of courts, and the relationship between courts and other actors. The distinction between principle and doctrine often gives rise to a gap between meaning and enforcement. (3) Sometimes this results in overenforcement: For prophylactic reasons, courts may enforce a constitutional principle more broadly than its strict meaning requires. The overbreadth doctrine in First Amendment law, for instance, allows courts to strike down laws even though the challenger's speech is unprotected, simply because the law might also be applied to protected speech. (4) The effect is to allow the constitutional prohibition to sweep more broadly than its conceptual scope--to protect, functionally speaking, unprotected as well as protected speech. (5) More often, courts underenforce constitutional norms: As Larry Sager has explained in a pathbreaking article, sometimes "the Court, because of institutional concerns, has failed to enforce a provision of the Constitution to its full conceptual boundaries." (6) Courts do this for institutional reasons rather than for analytical ones; hence, when a constitutional norm is underenforced, its doctrinal application simply does not exhaust the conceptual meaning of the underlying constitutional principle. (7) For a variety of reasons, the judge-made doctrine that enforces constitutional limits on national authority tends to underenforce those limits--sometimes radically so. That underenforcement problem is at center stage in the debate about the national healthcare law. In that debate, the "smart money" is confident that the Patient Protection and Affordable Care Act (ACA) (8) is constitutional--that it is, in fact, an easy case. Laurence Tribe, who practically defines the "smart money" in constitutional law, has said that "this law's constitutionality is open and shut." (9) Similarly, Erwin Chemerinsky's contribution to this conference insists that "the federal healthcare law is constitutional. It is not even a close question." (10) These assessments, and others like them, (11) rest not so much on what the Constitution means conceptually but rather on what the Supreme Court has said about it--particularly since 1937. That, of course, is the date of the Court's famous "switch in time," in which the Court acquiesced in the development of the national welfare state by signaling that it would no longer vigorously enforce principles of economic liberty or limits on national power. (12) Dean Chemerinsky, for example, is careful to acknowledge that the ACA's constitutionality is easy "under existing doctrines." (13) He is probably correct: Current doctrine gives contemporary lawyers good reason to be confident that the Court will uphold the ACA because that doctrine is extremely deferential to Congress. Federalism is, in other words, underenforced in current law, and if that underenforcement continues, there is every reason to expect the ACA to survive current challenges to its constitutionality. What I want to resist in this essay, however, is any supposition that the current underenforcement of federalism or economic liberty is somehow natural, inevitable, or necessarily correct. …

Pleading as Information-Forcing

Abstract: I INTRODUCTION The federal pleading standards announced in Ashcroft v. Iqbal (1) and Bell Atlantic Corp. v. Twombly (2) have occupied the attention of academics, jurists, and practitioners since their announcement. Iqbal alone has, as of this writing, been cited by more than 26,000 courts, more than 500 law review articles, and innumerable briefs and motions) Interested observers, including the Federal Judicial Center, many academics, and this author, have tried to estimate the empirical effect of the decisions, with differing results. (4) Others, including some participants in this symposium, have criticized Iqbal and Twombly for altering the meaning of the Federal Rules outside of the traditional procedures contemplated by the Rules Enabling Act. (5) Almost all commentators, however, agree that Iqbal and Twombly mark a break from the liberal pleading doctrine enunciated in 1957 by Conley v. Gibson. (6) It is hard to avoid this conclusion, given the Twombly Court's explicit rejection of at least one well-worn sentence from Conley. But exactly how much has changed is up for debate, and there are certainly well respected commentators who have suggested that Iqbal and Twombly are not necessarily as consequential as most academics seem to believe. (7) This article does not deign to answer exactly how much Iqbal and Twombly have changed pleading. From my own reading of the two cases as well as lower courts' attempts to interpret them, it is clear that pleading is a different animal than it was before 2007. But even more striking is the confusion that the two cases have created for the advocates and judges who have to grapple with the new pleading standard. Even the Supreme Court has continued to sow the confusion, by citing to pre-Twombly pleading law instead of Iqbal or Twombly in a recent case. (8) This article suggests a source of this confusion distinct from the Court's own lack of clarity in explaining the decisions, and then tries to relate this confusion to two poles of pleading principles that appear to be operating in lower court interpretations of the cases. The source of confusion at focus here is linguistic. Iqbal and Twombly have created havoc not simply because they upended settled expectations about the nature of pleading. Had the decisions clearly articulated the new pleading standard, it might have been subject to the same criticisms summarized above, but at least it would have been easier for lower courts to apply. Instead the Court shifted standards by using familiar words in a completely new manner. The Court's new standard places an emphasis on the words "conclusory" and "plausible," words that it had used before, but never in the way that it did in Iqbal and Twombly. (9) The term "conclusory," for example, had rarely been invoked by the Supreme Court in the pleading context; when it did so, it was to condemn legal, not factual, conclusions, as insufficient on their own to make a complaint viable. By contrast, conclusory factual allegations were fatal in legal contexts that involved the assessment of evidence--for example, summary judgment, "good cause" in discovery--but pleading has never been a site for sifting evidence. Thus, prior to Iqbal, what was to be disregarded as "conclusory" at the pleading stage differed from what was to be disregarded at other procedural stages. At least one reading of Iqbal collapses this procedural based meaning of "conclusory," creating an evidentiary standard of proof at the pleading stage where it never before had existed. Similar comparisons can be made of the Court's use of the word "plausible." (10) The end result is a pleading inquiry that begins to look evidentiary in nature, an observation that has led some to view Iqbal and Twombly as merging the Rule 12 and Rule 56 inquiries. (11) This leads to the second major point of this article: namely that conducting an evidentiary inquiry at the pleading stage has a distinct danger apart from criticisms that have been made by other commentators. …

Free Riding on Benevolence: Collective Action Federalism and the Minimum Coverage Provision

Abstract: I INTRODUCTION The Patient Protection and Affordable Care Act (ACA) (1) requires most lawful residents of the United States to maintain a certain level of health insurance coverage (the minimum coverage provision) or pay a certain amount of money each year (the shared responsibility payment). (2)These provisions go into effect on January 1, 2014. Present litigation over the ACA focuses primarily on the constitutionality of these provisions, which are popularly called the "individual mandate" by critics. (3) Those attacking the minimum coverage provision argue, among other things, that it is beyond the scope of Congress's power to regulate interstate commerce because it regulates inactivity (declining to obtain health insurance), as opposed to economic activity. To date, one federal court of appeals (out of three that have decided the merits of the question), (4) as well as three federal district courts (out of six that have decided the merits of the question), (5) have invalidated the minimum coverage provision in part on the ground that it regulates inactivity. (6) The subject matter regulated by the minimum coverage provision can be characterized as health insurance markets. This characterization makes the provision appear to regulate inactivity (not obtaining health insurance). The provision requires individuals either to enter into an insurance contract or to pay money to the federal government each year if they do not. Critics of the provision prefer this characterization. Alternatively, the subject matter regulated by the minimum coverage provision can be characterized as the interstate healthcare market. Almost all Americans participate in this market in some fashion, and everyone has access to it regardless of ability to pay in the event of an emergency. (7) Each year, uninsured Americans in this market obtain more than $50 billion worth of medical services for which other individuals and institutions must pay. (8) This characterization makes the minimum coverage provision appear to regulate the activities of delivering and receiving healthcare. Defenders of the provision prefer this characterization. (9) This distinction between inactivity and activity, however, has nothing to do with the limits of congressional power granted in the clauses of Article I, Section 8 of the U.S. Constitution. Instead, as Robert Cooter and I have articulated, the presence or absence of multi-state collective action problems is central to understanding the scope of federal power in the clauses of Section 8. (10) These clauses mostly concern collective action problems created by interstate externalities and interstate markets. (11) A prominent example is the Commerce Clause, which empowers Congress to regulate commerce "among the several States" but not commerce that is internal to a state. (12) The theory of collective action federalism distinguishes activities that pose collective action problems for the states from those that do not. This structural account of Article I, Section 8 draws substantial support from constitutional text, history, and much judicial precedent. (13) For example, the Framers understood collective action problems well; indeed, the pervasiveness of such problems among the states during the Critical Period of the 1780s inspired the Constitutional Convention. (14) This structural approach also flows directly from the relative advantages of the federal and state governments. Much of what the federal government does better than the states is solve collective action problems that the states cannot deal with effectively on their own. According to the theory of collective action federalism, the expanse and limits of congressional power in the clauses of Section 8 turn in significant part on the difference between individual and collective action by states. In order to address multi-state collective action problems, the Constitution has long been understood to authorize Congress to mandate numerous kinds of private action. …

A Problem of Power: The Impact of Modern Sovereignty on the Rule of Law in Comparative and Historical Perspective

Abstract: Sovereignty may be seen as the essential ground or origin of legal authority; the sovereign is that person or group whose will must be expected to prevail. Important concrete principles and practices flow from this assumption. One cannot sue the sovereign because this would give courts the power to command their superior, undermining the sovereign’s role as supreme lawgiver. National governments can only be bound by treaties to which they have given their assent, lest their sovereign self­mastery be denied. According to this view, there must be a source of law above the law or there is no real, full law of any kind, only conflict over what the law ought to be.

A Dialogue Between a Theologian and a Lawyer

Abstract: H. JEFFERSON POWELL (1): Let me begin with a story about Stanley Hauerwas. It's actually about Stanley, not about me, but it won't sound that way at first. The first time I served at the Department of Justice, I had to go through a national security check so that I could be allowed to find out all kinds of extraordinarily boring, but highly classified pieces of information. And one of the end points of that process is an interview with an FBI agent. And one of her jobs is to explore with you any loose ends, anything troubling. I am sure that is exceedingly boring because of course for most people there is nothing there. But the FBI agent that came to me in 1993 was excited because she had something really, really interesting: "Mr. Powell, one person we spoke to about you gave us an answer that caused us some pause. When we asked Stanley Hauerwas whether there were circumstances in which you would be disloyal to the United States of America, Mr. Hauerwas said, 'Yes.' What did he mean?" I replied, "Well, what Stanley was saying is that I am a Christian and therefore if I had to choose between obeying God and obeying the State, I would choose to obey God." She responded, "Oh, it's about religion. Never mind." This exchange reveals several things that are important about Stanley. First, it tells us something about the person (although the person here is deeply connected with the thoughts). With his characteristic generosity on a personal level, Stanley was assuming, I hope correctly, that I would do the same thing he would do under those circumstances. In a conflict between God and Caesar, I would choose God. One of the problems people have, I think, in pinning down how Stanley relates to the law is that Stanley's thinking goes on several different levels and this personal characteristic, friendly generosity, is intrinsic to Stanley's understanding of the universe. It's from Stanley I learned--although Thomas Aquinas saw it before--that friendship is not just an ephemeral matter--it is part of the constitutive nature of the universe, friendship of God being the ultimate example. A second insight into Stanley revealed by my exchange with the FBI agent is that Stanley has spent his career trying to make us understand how shocking that agent's reaction ought to be to Christians. As soon as the agent learned that Stanley's reservation had something to do with my religion, that meant it wasn't important, that it wouldn't make any difference. She was no longer concerned. One of Stanley Hauerwas's great gifts to American Christianity and Christianity in general has been to say that it ought not be like that. A third insight from my exchange with the agent raises a question that I don't think Stanley has truly answered, and part of the point of the dialogue today is to encourage him and the rest of us to explore the issue further. Suppose Stanley had succeeded and the agent's reaction had not been "it's just religion." Suppose she had instead realized that Christianity is intrinsically and entirely and completely in some unique way, political. Should she have been worried by my answer--by Stanley's answer--that yes, I would obey God rather than Caesar? I am going to take the moderator's privilege and pose a version of this question to Stanley. I am going to first tell you the real form of the question, what it is really about, and then I will ask it in proper fashion. The real question, Stanley, is, can I agree with you mostly and still be a government lawyer? I have been doing this government lawyer thing for a long time. In fact, I was working full-time as a government lawyer when I finished my PhD with you, and so I have been wrestling with this and you have never actually told me "no." But I am not sure you have told me "yes" or how to do it. Now let me ask the formal question. You say that you are a theocrat, and I think what you mean by that is that there are no areas of life in which Christians do not live under Christ's lordship and that everything a Christian does is, or ought to be, a Christian act by a Christian through and through. …

Federal Mens Rea Interpretation and the Limits of Culpability’s Relevance

Abstract: I INTRODUCTION The standard description of Anglo-American criminal law is that liability requires voluntary conduct and a culpable mental state--the union of act and intent. (1) Proof of both ensures that criminal punishment rests upon fault as well as wrongdoing, where wrongdoing refers to conduct that violates a prohibition, and fault is a determination based on intention or conscious awareness of the wrongful conduct, its consequences, and the significant circumstances in which it occurs. (2) Together wrongdoing and fault make an offender blameworthy (or culpable), which justifies imposing criminal sanctions. An important corollary is that criminal punishment is set in some proportion to wrongdoing and fault; culpability limits punishment. Mens rea requirements are the traditional means to determine culpability. That is, we determine fault by proof of an actor's mental state--intention, knowledge, recklessness, or perhaps negligence--with regard to various elements of the offense. Thus, the difference in causing a death intentionally and causing a death non-negligently (holding aside defenses) is the difference between liability for murder and no liability. Similarly, after one's hand makes contact with another's nose, liability for assault may depend on whether one was aware that another was within range of voluntary arm movements. And liability for theft depends in part on one's awareness that the property belonged to another. The story is more complicated, of course. There is a longstanding rationale for a broad range of "public welfare" offenses that require no fault--no proof of mens rea. Liability is justified largely on instrumental grounds--prevention of harm--and on proof (generally, in some sense) of a causal relationship between the actor and the risk that the offense targets. (3) As a category, those offenses generally have low (misdemeanor-level) punishments, and they are not my focus here. (4) The more challenging and significant complications regarding the fault requirements arise in serious offenses carrying significant prison terms. As a practical matter, these difficulties concern which elements of felony offenses carry mens rea requirements. For this question, the principle that "criminal liability requires proof of a culpable mental state" is insufficient. Strict liability as to some elements of offenses is widespread and often noncontroversial. Yet courts lack reliable interpretive tools for distinguishing which statutory elements will carry strict liability, surely in part because legislatures do not seem to follow consistent principles when designating strict liability elements and employ drafting conventions that make their intentions on such choices unclear. (5) Courts' interpretive choices regarding mens rea present a choice of two accounts of culpability, which are also bases for sentencing. These choices address ideas of what degree of culpability is required to justify criminal punishment, which is the same choice underlying legislatures' design of offense definitions. One account is proportionate culpability. This principle states that punishment must be in accord with or in proportion to culpability, and it is sometimes endorsed by courts (6) and overwhelmingly by scholars. (7) Mens rea must attach to every normatively significant element of the offense as a means to measure culpability; one who intends a bad result demonstrates more fault than one who intends conduct but not the result it causes. The Model Penal Code (MPC), the American Law Institute's mid-century recommendation of how American criminal law should be designed, strongly endorsed proportionate culpability. (8) This idea, however, characterizes neither American criminal law nor courts' interpretation of mens rea requirements. The contrasting principle one might call threshold culpability and seems to be the dominant view of American courts and legislatures. On this view, proof of mens rea is needed only to determine whether one is innocent or blameworthy for some offense. …

What We Fret About When We Fret About Bootstrapping

Abstract: I INTRODUCTION In his contribution to this symposium, Stuart Benjamin identifies, elaborates, and evaluates the intuition that there is something troubling about bootstrapping--the process by which an actor can, by doing Y, give itself the power to do Z. (1) That intuition animates much of the opposition to the Patient Protection and Affordable Care Act (ACA). (2) Benjamin argues convincingly that, however bootstrapping is defined, it is not the constitutional threat that some people have imagined it to be. (3) As Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit explained in the course of rejecting a different argument against the constitutionality of the ACA, "Sometimes an intuition is just an intuition." (4) In this short response, I attempt to join the projects that Benjamin has set for himself: first, identifying what people mean when they talk about bootstrapping; second, elaborating what people find troubling about that concept; and, finally, evaluating whether those concerns are justified. Although I agree with Benjamin almost completely, I try here to offer a few different points of emphasis, including more of a focus on the distinction between bootstraps and preconditions, four types of concerns regarding bootstrapping (those relating to aggrandizement, formalism, institutionalism, and transparency), and the relevance of the bootstrapper's purpose. (5) II INTUITIONS ABOUT DEFINITIONS Bootstrapping is a term whose frequency of use conceals a variety of shadowy and perhaps shifting meanings. The strength of people's intuitions about bootstrapping is not, unfortunately, indicative of any agreement about what actually constitutes a bootstrap. One of the most useful contributions of Benjamin's piece, therefore, is its effort to identify and explore those meanings. The first and most basic meaning of bootstrapping is the one Benjamin describes at the beginning of his article, namely that "by undertaking Y, an actor creates the conditions that enable that actor to undertake some further action Z." (6) In other words, Z would be impossible or impermissible were it not for the existence of Y. The actor (A), by doing Y, creates the precondition for its also being able or allowed to do Z. There are, of course, many instances in which an actor must do Y before doing Z, and not all of them are bootstraps. When a person obtains a concealed-carry license (Y), she is then legally permitted to carry a concealed firearm (Z). Yet few people would regard compliance with the licensing requirement as a bootstrap. If it is, then bootstraps are even more pervasive than Benjamin says, and the hard definitional project lies in separating the good bootstraps (like compliance with licensing requirements) from the bad. Perhaps the difference between bootstrapping and satisfying a precondition is that, in the former case, the actor has control over both Y and Z--the "entity is empowering itself, rather than being part of a process involving many different entities." (7) Of course, the same is true of the concealed carrier. She has, by obtaining a license, empowered herself to carry a concealed firearm. Maybe the cases can be distinguished on the grounds that she has not truly empowered herself, for the requirement of Y was actually set by the legislature--a "different entit[y]." But that is not entirely satisfying either because nearly every imaginable bootstrap involves a Y required by another entity. The arguable Commerce Clause bootstrap in the context of the ACA, after all, involves Congress's attempt to satisfy a doctrinal test established by the courts. Maybe what makes bootstraps different from the satisfaction of preconditions is that the bootstrapping actor has done Y only because it really wants to do Z. That is, bootstraps occur when A undertakes Y solely because it enables Z, and not because A believes that Y has any independent value. …

Hauerwas on “Hauerwas and the Law”: Trying to Have Something to Say

Abstract: I responded positively, even with enthusiasm, when John Inazu asked me if I would be open to a symposium on my work and the law. I am seventy-one. I need all the attention I can get before I die. That may not be put quite right. It may be that the attention I receive gives me the impression, an impression that may or may not be accurate, that I am not yet dead. So let me begin by thanking John for thinking of me and for the extraordinary symposium he has put together. I confess, however, that, at the time John first broached the idea of having such a symposium on my work and the law, I did not know what a challenge it would be for me. John makes the challenge clear in the subtitle of his foreword: that is, "Is There Anything to Say?" (1) That subtitle expresses perfectly my reaction when I began to realize that I would not know what to say if I had to write a paper on "Hauerwas and the Law." I am, therefore, particularly grateful to those who have written these substantive papers; what they have to say is more interesting than what I would have been able to say if I had been left to my own devices. Indeed, they have raised so many questions about how my work may or may not have implications for the law there is no way I can do justice--a concept that has the ring of the law about it--to their papers. I suspect, in particular, there are interconnections between their papers that I should be able to articulate but that I may well have missed. I will simply have to trust--a word that I think extremely important for the subject before us--readers to make the connections in a more constructive way than I am able to do in this response. Before trying to respond to the individual papers, however, I thought it might be useful to say why and how I began to think about the law. By doing so, I hope my response to the individual papers might be more coherent. That the law has always been important for me may seem odd. After all, I am usually associated with those who began to emphasize the importance of the virtues as an alternative to ethics, which is more determined by analogy to the law. Of course I have never been happy with the assumption that an ethic of the virtues is somehow antithetical to, or exclusive of, law-like accounts of our moral lives. I have associated the idea that you must choose among a deontological, teleological, or virtue ethic with minds who think that typologies can be identified with thinking. It may seem odd, but I think my interest in the law began with my training to be a theologian. I was fortunate to begin my theological studies at Yale when the law-gospel dualism so characteristic of Protestant theology and ethics was beginning to be called into question. Being taught the Old Testament by Brevard Childs meant you learned to understand the law as a gift to the people of Israel so that God's holiness might be manifest to the world. In a similar fashion, I learned that the law played a much more positive role in Paul than the polemics of the Reformation would lead one to believe. These developments, moreover, had everything to do with a reconsideration of the significance of the continuing existence of the Jews, who allegedly were a people of the law, for the intelligibility of Christianity. Not unrelated to the reconsideration of the law in scriptural scholarship was the recognition by Protestants, or at least by me, that Roman Catholicism existed. Protestants had often made Catholics the Jews of Christianity; namely, they were thought to be hopeless legalists. With the advent of Vatican II, however, Protestants who worked in that strange field called Christian ethics began to pay attention to work done in Catholic moral theology. Aquinas's Treatise on Law (2)--and it is important to note that it is the "Treatise on Law," not the "Treatise on Natural Law"--in the Summa Theologicae was read with fresh eyes. Some of us began to think that casuistry, when compared with vague Protestant suggestions about how we ought to love one another made by those enamored by situation ethics, was a very good thing. …

Constitutional Mortality: Precedential Effects of Striking the Individual Mandate

Abstract: Defenders of health insurance reform might rightly claim that blood will be on the hands of a court that strikes down the Patient Protection and Affordable Care Act (ACA). (1) Because insurance is necessary for decent access to healthcare, some analysts estimate that being uninsured kills 20,000 or more people a year. (2) Considering that the ACA reduces the number of uninsured by more than half, (3) it stands to reason that eliminating the ACA could cost more than 10,000 lives a year. Even if only the individual mandate were stricken, thousands could die each year, according to estimates that the ensuing market chaos would cut the Act's insurance gains in half. (4) As sobering as these statistics are, far more chilling is the loss of life that might result from the constitutional precedent that a negative ACA ruling could set. The challengers' chief argument is that the Commerce Clause confers no federal authority--no matter how dire the necessity--simply to mandate behavior, unconditioned on citizens engaging in some economic activity. This argument's frightening prospect is that this very power might someday be absolutely essential to saving a million or more lives, based on solid public health science, in the event of a catastrophic public health emergency. Imagine, for instance, a pandemic similar to the 1918 influenza that killed over half a million Americans. (5) Public health authorities warn that, eventually, such an outbreak is a very real possibility, and could kill several times more people in the modern era. (6) Or consider a nuclear-reactor meltdown like that in Chernobyl, or that almost happened in Japan following recent earthquakes. Minimizing deaths from such disasters requires forceful federal action, but the precedent that ACA challengers seek might tie federal hands. Insurance-mandate opponents fret over what vegetables the government might force them to purchase if the mandate were upheld. (7) But courts, rather than obsessing over slippery slopes toward ridiculous mandates, should be much more concerned about the high hurdles to appropriate federal health action that a nullifying precedent would erect. As Chief Justice Marshall first reminded us almost two centuries ago, ours is "a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs." (8) State and local public health authorities historically have been the first line of defense against public health and natural disasters. (9) But, in the modern world, when local measures prove inadequate, the federal government wisely has contingency plans to take measures necessary to protect the public's health and safety. (10) The Public Health Service Act, for instance, allows the Surgeon General to provide for "the apprehension and examination of any individual reasonably believed to be infected with a communicable disease in a communicable stage and... to be a probable source of infection to individuals who... will be moving from a State to another State." (11) This authority covers not only those who are in active movement, but also those who might spread disease to people who travel. Thus, according to leading public health law authorities, "because virtually any infected person could be a source of infection to others who might be traveling from state to state, jurisdiction over quarantine and isolation is effectively concurrent between state and federal governments." (12) Another source of emergency federal power is the Department of Homeland Security's "National Response Framework." It contains provisions for "catastrophic incidents," defined as "any natural or manmade incident... that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the population, infrastructure, environment, economy, national morale, and/or government functions." (13) The plan recognizes that a catastrophic incident "could result in sustained nationwide impacts over a prolonged period of time [that] almost immediately exceed[] resources normally available to State, tribal, local, and private-sector authorities in the impacted area. …

The Judicial Access Barriers to Remedies for Securities Fraud

Abstract: I INTRODUCTION Congress has created a mechanism through which victims of securities fraud may pursue remedies for their losses against perpetrators. That mechanism includes the substantive prohibitions of the federal securities laws as well as the procedural pathways established by the Private Securities Litigation Reform Act of 1995 (PSLRA) and the Federal Rules of Civil Procedure and Evidence. Some federal courts have modified this mechanism by creating access barriers to remedies for securities fraud victims at the pleading, class-certification, and summary-judgment stages. In this article, we delineate those access barriers and question both their constitutionality and wisdom. II REWRITING RULES AND STATUTES TO CRAFT PRE-TRIAL ACCESS BARRIERS In some federal jurisdictions, the requirements of the PSLRA and the Federal Rules of Civil Procedure and Evidence have been rewritten by the courts to erect merits barriers at three key pre-trial litigation stages that force plaintiffs to prove their case to a judge, often without the benefit of discovery, before they can reach a jury. A. Pleading Scienter to Survive a Motion to Dismiss Some federal courts have redesigned the pleading standard under the PSLRA and the federal rules to steeply discount allegations of scienter that are based on circumstantial evidence. Under the PSLRA, plaintiffs must "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." (1) The required state of mind is scienter--that is, "intent to deceive, manipulate, or defraud." (2) Federal courts have also determined that recklessness is sufficient to establish scienter in actions for securities fraud. (3) In Tellabs, Inc. v. Makor Issues & Rights, Ltd., the Supreme Court interpreted "strong inference" to mean that a securities fraud complaint will survive dismissal only if "a reasonable person would deem the inference of scienter cogent and at least as compelling as any opposing inference one could draw from the facts alleged." (4) The Court later reaffirmed that the scienter standard "requires courts to take into account plausible opposing inferences." (5) Although Tellabs's weighing process may have reasonably interpreted the PSLRA, the Court's standard leaves room for courts considering a motion to dismiss to discount the kind of circumstantial evidence of scienter that would otherwise be sufficient to meet the plaintiff's burden of proof at trial. Circumstantial evidence gives rise to two equally plausible inferences. In contrast, direct evidence is evidence from which there is only one plausible inference. Direct evidence of a defendant's mental state is rare because it is usually limited to an actual admission by the defendant under oath or the testimony of a witness based upon personal knowledge. Thus, before Tellabs, circumstantial evidence of scienter was commonly pleaded and accepted by alleging that the defendant had a motive and an opportunity to engage in fraud, and had access to information that discussed the fraud or concerned the company's core operations. (6) Tellabs did not eliminate the use of circumstantial evidence in pleading, but rather held that when two inferences are equally plausible, the tie goes to the plaintiff. (7) And circumstantial evidence is still accepted both explicitly and in application by several federal courts. (8) Nonetheless, since Tellabs, some federal courts have erroneously steeply discounted circumstantial evidence of scienter. (9) Even though the federal courts have said that allegations of circumstantial evidence are sufficient to create a "strong inference" of scienter and even reiterated that mere recklessness is enough to satisfy the pleading standard, some courts in their application have found that the inference of scienter is less likely than virtually any other non-culpable mental state, even including negligence, (10) ignorance, (11) motive to improve the business, (12) and belief that undisclosed information was not material. …

Plotting Premeditation’s Demise

Abstract: I INTRODUCTION Few legal concepts are as accessible to the layman as is premeditation. Popular culture is filled with images of premeditating actors, be they Professor Moriarty, Voldemort, or even the opaquely denominated Dr. Evil. What is striking about popular culture depictions is that these characters are typically one-dimensional: they do nothing but plan the demise of the hero. No doubt exists as to the antagonist's culpability because all the actor does is plot the protagonist's death. (1) Unfortunately, art sometimes does imitate life all too accurately. The events of September 11th reveal that there are human beings who truly spend significant effort deliberating over killing other people and planning those killings. Osama bin Laden, Adolf Hitler, and Saddam Hussein represent real-world embodiments of one-dimensional evildoers. But the run-of-the-mill killing is not committed by Hitler or Voldemort. It is committed in strikingly different contexts--romantic rifts, bar fights, gang wars. One might think that, with such striking examples of premeditating actors, it would be easy to apply the common man's view of premeditation. In fact, however, theorists are exceedingly skeptical as to whether premeditation actually exists in any discernible way and, even if it can be conceptually captured, whether premeditation is an appropriate means for distinguishing between first- and second-degree murder. Indeed, Dan Kahan and Martha Nussbaum proclaim, "'Premeditation' is in fact one of the great fictions of the law." (2) Fiction or not, premeditation is a real problem. Despite the Model Penal Code's rejection of premeditation, twenty-nine states, the District of Columbia, and the federal government all employ a premeditation or deliberation formula as a part of their murder statutes. (3) In some of these jurisdictions, premeditation is the difference between life and death. (4) In others, premeditation may make a significant difference in prison term. (5) In efforts to adjudicate the guilty mind, premeditation presents obstacles at numerous levels. First, as a normative matter, there is reason to doubt that premeditation truly distinguishes the most culpable killings. As Sir James Fitzjames Stephen imagined, a man "passing along the road[] sees a boy sitting on a bridge over a deep river and, out of mere wanton barbarity, pushes him into it and so drowns him." (6) Stephen noted that in this case there is no premeditation but that it represents "even more diabolical cruelty and ferocity" than premeditated killings. (7) At the other end of the spectrum is State v. Forrest in which the defendant killed his suffering, terminally ill father; a first-degree murder conviction was upheld by the North Carolina Supreme Court. (8) Premeditation thus appears to be both over- and under-inclusive in capturing the most culpable actors. (9) Second, at the conceptual level, articulating a clear distinction between premeditation and an intention to kill is difficult. (10) In the average case, to form the intention to kill requires desiring something, believing that one will achieve what one desires by killing, and then forming the intention to kill. Is the deliberation inherent in choosing distinguishable from premeditation? Moreover, once the intention is formed, rational agents will often have to further deliberate as to how to kill, so intention execution may also involve deliberation. The problem is that, even if all that an intentional killing requires is the choice or intention itself, it is an extraordinarily rare individual who will not engage in some additional exercise of deliberation in intention formation or intention execution. (11) Third, even with viable normative and conceptual assumptions, translating this normatively charged concept into hard-edged legal rules will require that statutory drafters either opt for vague and overinclusive moralized standards (leaving "premeditation" to be filled in by juries) or underinclusive analytic styles (such as requiring specific time or ability to reflect). …

Remedies for Foreign Investors Under U.S. Federal Securities Law

Abstract: I INTRODUCTION The public regulation of global securities markets has become more effective in recent years as a result of improved cooperation among national regulators, (1) as well as increased harmonization of disparate legal rules. (2) The private enforcement of securities law, by contrast, remains an area of dissensus. This is due in part to the practice in the United States of applying U.S. antifraud rules liberally to cases involving significant foreign elements. Such extraterritorial application of law often creates conflict with other regimes whose substantive and procedural rules differ from ours. Historically, courts determined the reach of U.S. antifraud law--that is, its applicability to securities fraud claims with foreign elements--by applying the "conduct" and "effects" tests. (3) On that analysis, U.S. law governed claims arising out of fraudulent conduct that either occurred within the United States or caused significant effects within the United States. These tests were not invented in the securities area: they are simply instantiations of the broader international jurisdictional principle that a country has the authority to apply its law to particular acts only if those acts have a recognized jurisdictional nexus with the country (for instance, in the form of conduct, effects, or the actor's nationality). (4) As such, the tests called for case-by-case examination of whether the appropriate jurisdictional nexus was present in any given dispute. As applied in securities litigation, they have yielded some fairly unpredictable, and also somewhat expansive, results. The conduct test, in particular, was used to support the application of U.S. law to claims that seemed quite far removed from any U.S. regulatory interest--including claims brought by foreign investors who had purchased securities of a foreign issuer on a foreign exchange. (5) In 2010, the Supreme Court for the first time addressed the extraterritorial reach of Exchange Act section 10(b). (6) In Morrison v. National Australia Bank Ltd., (7) the Court rejected the long-standing conduct and effects tests in favor of a single transactional-nexus approach. Concluding that "the focus of the Exchange Act is not upon the place where the deception originated, but upon purchases and sales of securities in the United States," (8) it held that section 10(b) applies to fraud only in connection with "transactions in securities listed on domestic exchanges, and domestic transactions in other securities." (9) The test therefore has two prongs: the first covers transactions that take place on U.S. securities exchanges, and the second covers non-exchange-based transactions made within U.S. borders. (10) The investment transactions at issue in Morrison had taken place on a foreign securities exchange, and the Court therefore concluded that section 10(b) did not govern the plaintiffs' claims. (11) The Morrison lawsuit raised particularly thorny issues that counseled against application of U.S. law. First, it was a "foreign-cubed" case: the claims were brought by foreign investors against a foreign issuer, and arose out of foreign investment transactions. In such cases, the application of U.S. law would serve not the core regulatory interest of protecting U.S. markets and investors, but only the substantially weaker interest of preventing the United States from becoming a "launching pad" for fraud directed elsewhere. (12) The foreign regulatory interest, by contrast, was particularly strong. (13) Second, it was a class action, and the claims therefore invoked group litigation processes under U.S. procedural law that are themselves the subject of significant criticism in many other countries. (14) Finally, the plaintiffs in Morrison used the fraud-on-the-market theory to establish presumptive reliance; (15) in most countries, however, investors are required to prove actual reliance on misleading information in order to sustain a fraud claim. …

The Uneasy Case for the Affordable Care Act

Abstract: I INTRODUCTION Dean Erwin Chemerinsky says the Patient Protection and Affordable Care Act (ACA) (1) is "clearly constitutional"--that the case is "easy," and "not even ... close." (2) If you doubt that Congress can require everyone to buy health insurance, he suggests, you likely have a "political ideology" hostile to the law. (3) The real question facing the Supreme Court isn't whether the ACA conforms to the Constitution, but whether the Republican-appointed Justices will "transcend the partisanship" (4) and save the Act, along with "many other federal laws," from invalidation. (5) I disagree. The case for the mandate may end up winning, but it won't be easy. The very existence of this symposium (and the conference dedicated to it (6)) suggests that the legal issues aren't trivial. In fact, it's hard to follow the debate over the individual mandate--and the many court decisions it has produced--and conclude that there is nothing going on here but raw politics. The mandate raises deep issues of the scope of federal power, the reach and correctness of existing doctrine, and the right way to interpret the Constitution. The intellectual discomfort the mandate has generated isn't just partisan posturing, even if it's more widespread (as one should expect) among the ACA's political opponents. And striking down the mandate would hardly have the earth-shattering consequences Chemerinsky predicts, unless the decision provokes a much broader--and, to many people, welcome--reexamination of current doctrine. Broadly speaking, the mandate orders every taxpayer to buy health insurance. If you don't, you pay a "penalty," which the IRS then collects along with income taxes. (7) Though the current legal challenges face a variety of procedural barriers, (8) the ACA's defenders usually rest on three substantive grounds: the taxing power, the commerce power, and the Necessary and Proper Clause. But the case for the mandate, under existing doctrine, is uneasy on each of these grounds. More importantly, there are good reasons for doubting whether existing doctrine gets it right--and those reasons have more to do with constitutional theory than political preference. II THE ARGUMENTS A. The Taxing Clause Chemerinsky's first reason for considering the mandate "an easy question" is that Congress could have reached the same result by enacting a different law. Here, Congress simply ordered everyone to buy health insurance (9)-and then, in a separate provision, imposed a "penalty" on some of those who disobey. (10) Alternatively, it could have used its power "[t]o lay and collect Taxes" (11) to buy health insurance for those without it. (12) From the perspective of the "bad man" who only cares how much he must pay, (13) there's not much reason to complain. But the law doesn't take that perspective. Labels matter in the law because they matter in life. Congress can punish "espionage" as harshly as "treason," (14) but the Constitution treats treason as special. (15) And a civil penalty might be more fearsome than a criminal fine, but the latter still needs proof beyond a reasonable doubt. (16) The line between taxes and commands-backed-with-penalties is blurry, but it still exists, and courts still enforce it. Speeding tickets may raise revenue, but they're not taxes. And even if Congress can tax speeding, that doesn't mean it can write a nationwide code of moving violations. (17) In fact, courts have traditionally given greater deference to self-described "taxes" where self described civil or criminal penalties might be impermissible. (18) The fact that a different law would get us to the same place doesn't make this law constitutional. Nor have courts been persuaded, by and large, that we should look past this law's structure to reimagine it as a tax under the Taxing Clause. To be sure, Congress had political reasons for not implementing the mandate as a tax. …

Stanley Hauerwas and the Law: Is There Anything to Say?

Abstract: It might seem odd to devote a symposium in a law journal to a theologian who has argued for withdrawal from any form of government that "resorts to violence in order to maintain internal order and external security" (1) and who wonders whether lawyers "may in fact be going straight to hell." (2) If this is the starting point, then what conversation is to be had? But Stanley Hauerwas is closer to the law than most people realize. He has published in law reviews (3) and taught in law schools. (4) He has also signed amicus briefs, (5) testified as an expert witness, and served as a jury foreman in a rape trial. (6) Of course, the academy is a bit more particular with its recognition--expert testimony and amicus briefs alone would not have led to a journal symposium. But beyond his moonlighting as a legal advocate, Hauerwas has emerged as one of the foremost scholars and public intellectuals of the last four decades. He has written scores of books and hundreds of articles, (7) has been named "America's Best Theologian" by Time magazine, (8) and has delivered the prestigious Gifford Lectures. (9) He has arguably "articulated the most coherent and influential political theology in and for the North American context" (10) and has been "at the forefront of major transformations in theology" including virtue ethics, the role of narrative and community, and understandings of medicine and illness. (11) Hauerwas's arguments have shaped theological education and reached a broader public through books and sermons--both his own and those of the pastors and educators whom he has influenced. (12) His views have been scrutinized by some of the leading thinkers in religious studies, (13) sociology, (14) history, (15) political theory, (16) moral philosophy, (17) and literary theory. (18) And they have been largely ignored in legal scholarship. (19) The inattention to Hauerwas in legal scholarship is particularly odd given that he has written for decades about issues central to the law: violence, liberalism, bioethics, disability, interpretation, capital punishment, just war theory, reconciliation, public reason, patriotism, euthanasia, abortion, and religious freedom, to name only a few of the more obvious connections. And the general lack of familiarity with Hauerwas by legal scholars (even among many of those who write in the area of law and religion) has contributed to a growing divide. As Jeffrey Stout has observed, "[t]he more thoroughly Rawlsian our law schools and ethics centers become, the more radically Hauerwasian the theological schools become." (20) Hauerwas has been a persistent critic of contemporary liberal political thought. (21) His arguments resemble those advanced by scholars ranging from Alasdair MacIntyre to Stanley Fish who, in different ways,, challenge liberalism's purported neutrality and its suppression of theological discourse. (22) But Hauerwas differs from other well-known critics because he writes as a theologian. In other words, he is both echoing second-order arguments against the claims of liberalism and displaying first-order arguments from within a particular theological tradition. Some of Hauerwas's critics may be right to argue that he "reacts against a type of liberalism that exists mostly on the pages of books by Rawls, Rorty, and their followers, and not in actual practice." (23) But that description is least true of the academy. (24) Much teaching and scholarship relies upon unacknowledged constraints on argumentative practices from professors who embrace the ideals of Rawlsian public reason or, more strikingly, whose epistemic commitments welcome a spectacular diversity of viewpoints and worldviews--except for theological ones. (25) As a result, a great deal of scholarship ignores or too easily dismisses theological argument. (26) If public reason and epistemic bias have succeeded anywhere in squelching theological argument, it is in the academy. Contrary to the academy's dominant orthodoxies, Hauerwas insists that Christian theology properly belongs in contemporary discourse: "[A]t the very least Christianity names an ongoing argument across centuries of a tradition which has established why some texts must be read and read in relation to other texts. …

Must Liberalism Be Violent? A Reflection on the Work of Stanley Hauerwas

Abstract: I INTRODUCTION My subject is the work of the theologian Stanley Hauerwas on violence and coercion. I shall argue that his views on the violence of war and his views on the violence of the liberal state are inextricably linked, and that the critique of liberalism that emerges from his thought actually does have--contrary to his own view--important implications for public policy. In order to appreciate his thinking on these matters, one must appreciate his starting point, which is not the starting point of the standard academic analysis--that is, he does not begin with liberalism. He begins (and he would say, ends) with Christianity. Not Christianity in the sense of Christendom but Christianity in the sense of church--the place to which Christians are called and through which their lives are constituted. And although Hauerwas certainly has some interest in what commands bind believers in general and Christians in particular (a point to which I will presently come), his larger concern is the creation and nurturing of people who believe that commands bind them--that people are in the first instance bundles not of rights and preferences (as liberalism would have it) but of duties. These duties, moreover, are not owed to each other, or to ideology or party, or to government or future generations or Mother Earth; they are owed to God. The notion that we are created by God, and owe duties first to God, is crucial to the conceptions of church and of society that motivate his work. Following close behind is his conception of American culture--legal, political, and economic--as determined, through every available method of temptation and coercion, to conceal these duties, to cloud them, to draw us away from them, recreating us instead as creatures sufficiently arrogant to believe in our own freedom to choose our own ends--in short, to suit us for capitalism. Although my subject is Hauerwas's views on violence, it is important to begin with this account of his views on culture and personality, because he largely rejects the distinction, crucial to the liberal account of politics, between the legitimate use of force that creates the coercion of law and the illegitimate use of force that constitutes mere violence that the state must rein in. (I say "largely rejects" because some of his work seems to me inconsistent on this point; but what I have described I take to be his more settled view.) In this I suspect that Hauerwas is influenced heavily by the theologian Paul Ramsey (whom he often quotes), who once suggested that, having developed a theory of just and unjust war to cabin the use of legitimate force abroad, we might perhaps consider using similar criteria to determine what counts as legitimate force at home. (1) I am not sure that Hauerwas goes quite this far, but in his radical rejection of the liberal distinction among types of violence, he does indeed invite us to reconsider the very premises on which liberalism rests the supposedly legitimate coercion by the state. II When we think about morality and violence, our thoughts turn naturally to war--the flooding horror of armed conflict between nations--and war is a subject on which Stanley Hauerwas has written voluminously. Indeed, so dominant has Hauerwas become in the field that no theologian or philosopher can address the problem of war in a serious way without grappling with Hauerwas's ideas. He has written about war many times, most recently in a quite impressive forthcoming book entitled War and the American Difference, wherein he challenges his fellow Christians to decide how they "should live in a world of war as a people who believe that war has been abolished." (2) His reference to the abolition of war--a subject he has written about in the past--offers a particular claim about the effect of the Cross of Christ. I will not here repeat his intriguing argument for the proposition, but I will say that understanding that Hauerwas believes this is crucial to understanding his view of war. …

Creation Stories: Stanley Hauerwas, Same-Sex Marriage, and Narrative in Law and Theology

Abstract: When I think about--members of my own staff who are incredibly committed, in monogamous relationships, same-sex relationships, who are raising kids together. When I think about--those soldiers or airmen or marines or--sailors who are out there fighting on my behalf--and yet, feel constrained, even now that Don't Ask, Don't Tell is gone, because--they're not able to--commit themselves in a marriage ... At a certain point, I've just concluded that--for me personally, it is important for me to go ahead and affirm that--I think same-sex couples should be able to get married. (1) President Barack Obama I INTRODUCTION On June 24, 2011 New York became the most recent, and largest, state in the United States to legalize same-sex marriage. (2) More recently, and perhaps importantly, President Obama announced his support for same-sex marriage, after a very public "evolution" on the subject. (3) Even more recently, the United States Court of Appeals for the First Circuit held that the Defense of Marriage Act violated the Constitution. (4) Along with the recent decision by the United States Court of Appeals for the Ninth Circuit denying a rehearing of its decision invalidating California's constitutional amendment outlawing same-sex marriage, a seismic shift has occurred in the gay marriage movement. (5) In some quarters, the successful push to legalize same-sex marriage is seen as the culmination of the movement for lesbian, gay, bisexual, and transgender (LGBT) equality. (6) The success of the campaign to legalize same-sex marriage might be understood as the ratification of the LGBT equality movement's goal of making the lives of LGBT individuals less foreign to those within the larger political community. (7) The translation of LGBT lives to the larger public has been one of the most significant strategies of the mainstream LGBT equality movement. Advocates for LGBT equality have argued that eradicating prejudice against LGBT persons rests on the LGBT community's ability to undermine stereotypes of LGBT persons held by the straight community. (8) Narrative has been a central mechanism by which advocates of LGBT equality have sought to undermine stereotypes about LGBT people because of its capacity to draw others into participation in, and identification with, the LGBT community. (9) The turn to narrative is not unique to the movement for LGBT equality. In the areas of gender and race, proponents of progressive social reform have turned toward narrative as a way of providing a framework through which the experiences of "outsiders" might be understood by "insiders." (10) Advocates who have sought to highlight issues of racial and gender inequity have enlisted narratives through which the experiences of racial and gender hierarchies might be understood. (11) The commitment to narrative also represents an intellectual challenge to the capacity of abstract principles such as anti-discrimination, equality, or accommodation to embody the specificity of the experience of individuals who live without the presumptions that attend life as a male, as a white person, or as an able-bodied person. (12) Narrative challenges the capacity of legal or doctrinal categories to dislodge dominant, prejudicial perspectives and presumptions. (13) The recourse to narrative serves the twin goals of demonstrating the "outsider" status of certain identity categories and experiences, (14) and deploying the "outsider" perspective to undermine the dominant position of the "insider" perspective as it relates to the distribution of societal goods--including nonmaterial goods. (15) Within the academic community, the use of narrative had special significance in the work of a subgroup of progressive legal scholars, who had grown disillusioned by the limits of even transformative legal and social change. These scholars, whose work ranges across gender, (16) race, (17) and sexuality, (18) deploy narratives to call into question the success of commitments to formal equality in the contexts of race and gender. …

A Modest Proposal for Securities Fraud Pleading After Tellabs

Abstract: INTRODUCTION Pleading rules are filters. They weed out some cases while allowing others to go forward. By controlling access to the litigation system, these rules--if they function as intended--can reduce burdens on the courts, save parties from having to defend themselves against baseless charges, and facilitate the fair and efficient administration of justice. All pleading rules face the problem of error. Because decisions are made before the facts are determined, courts make mistakes in their projections about how the case will develop. As with any filter, the errors come in two types. Some cases that should not continue are allowed through, and some cases that ought to be litigated are weeded out. Ideally, pleading rules should be designed so as to minimize the joint cost of the two error types. Judges and rulemakers are like legal engineers responsible for designing systems that solve this optimization problem. Tellabs, Inc. v. Makor Issues & Rights, Ltd. (1) is a signal example of a pleading rule as filter. The Private Securities Litigation Reform Act (PSLRA) declares that in any private action arising under this title in which the plaintiff may recover money damages only on proof that the defendant acted with a particular state of mind, the complaint shall, with respect to each act or omission alleged to violate this title, state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind. (2) If a complaint does not satisfy the requirements set forth in the statute, the case will be dismissed (although the court may declare that the dismissal is without prejudice, thus allowing the plaintiff to re-plead). The PSLRA is therefore a filter: complaints that satisfy the rule go forward; ones that do not are eliminated. Tellabs concerned the interpretation of this pleading requirement. It set forth a uniform federal standard for determining when allegations in a securities fraud complaint suffice to create a strong inference of scienter (the technical term for the state of mind required to establish liability for securities fraud). In the Court's now-familiar articulation, a securities fraud complaint will survive a motion to dismiss if and "only if a reasonable person would deem the inference of scienter cogent and at least as compelling as any opposing inference one could draw from the facts alleged." (3) Does the PSLRA, as interpreted in Tellabs, draw the most effective line for weeding out meritless securities fraud suits while allowing meritorious ones to proceed? This article considers that question. This article presents the argument that although Tellabs represents a creditable effort to clarify imprecise statutory language and to implement the intent of Congress, the rule articulated by the Court falls short in several respects. II INTERPRETING TELLABS Tellabs clarified the law in several respects. First, it articulated a uniform standard for scienter allegations in securities fraud complaints, thereby resolving pre-existing disagreements among the federal circuits. (4) Second, it established that the test is comparative in the sense that a court must evaluate both culpable and non-culpable inferences that could be drawn from the facts alleged. (5) Third, Tellabs indicated that ties go to the plaintiff: the plaintiff does not need to show that the inference of scienter is the most plausible one to be drawn from the facts pied in the complaint, only that it is at least as plausible as other inferences. (6) Finally, Tellabs established a middle-ground approach toward scienter pleadings. The Court made it clear that it was opting for neither the stringent standards that some circuits had developed, nor for the lenient ones that others had. (7) Even though Tellabs clarified the law in these respects, the standard articulated by the Court was itself subject to ambiguity. …

Lawyering in the Christian Colony: Some Hauerwasian Themes, Reflections, and Questions

Abstract: I INTRODUCTION The basic question for secular philosophical legal ethics, following the formulation in an influential paper by Charles Fried, is often taken to be, "Can a good lawyer be a good person?" (1) This question highlights the possibility that obligations owed as a matter of one's professional role might conflict with duties owed qua moral agent. As classic case studies illustrate, lawyers may be required to keep information confidential that could be used to prevent serious harm if disclosed, (2) assert a technical defense to defeat a just claim, (3) or provide legal representation to loathsome clients like the Grand Wizard of the Ku Klux Klan or a former guard at the Treblinka concentration camp. (4) The so-called standard conception of legal ethics tells lawyers that they must act out of exclusive concern for the legal interests of their clients. A lawyer is permitted to disregard the interests of affected third parties and the public interest, if it would be in the client's interests to do so, and if the law permits the violation in question of the third party or public interest. Why must a lawyer, for example, interpose a procedural defense to enable her client to avoid paying a debt she admits she owes? Because it is in the client's interests, the maneuver is "within the bounds of the law" in the sense that neither the client nor the lawyer would be subject to legal penalties for employing it, and because the lawyer's only moral obligation arises from the duty of loyalty to her client who has the autonomy to choose whether or not to repay the debt. Critics of the standard conception claim that when lawyers violate the rights of non-clients by deceiving, humiliating, or manipulating them, the purported justifications they offer fail to excuse the moral wrongs they commit. (5) Although loyalty to clients may be an important value, other values are also implicated in these cases, and defenders of the standard conception must also justify a priority principle that gives client-regarding obligations greater weight than obligations owed to affected non-clients or to society as a whole. For the purposes of this symposium on the relevance of the work of Stanley Hauerwas for the law, the important thing to notice about this debate is that most defenses of the standard conception are grounded, in one way or another, in political liberalism. (6) The liberal foundation is evident in Stephen Pepper's well-known warning against government by an "oligarchy of lawyers." (7) At least regarding competent adults, all of us are moral agents, responsible for determining how to lead our lives. The law necessarily imposes restrictions on what we may do, but no one else is empowered to place restrictions on our autonomy. In a complex, highly legalistic society, however, we are necessarily required in some cases to seek advice from legally trained professionals to determine whether our proposed course of conduct may violate the law, or to employ mechanisms provided by the legal system (such as contracts, wills and trusts, and business entities) to achieve our goals. In providing this assistance, lawyers should not impose their own views about the morality of their clients' conduct. Rather, they should assist their clients in implementing their own plans and providing technical assistance. (8) As any reader of Hauerwas knows, this is an aspect of the modernist anomie he warns about. In a modern liberal society, autonomy to decide for oneself is exalted into the first principle of ethics, with the result that individuals are cut off from the resources they need (traditions, communities, stories) to construct meaningful lives for themselves. This kind of alienation can be cured only by associating oneself with a community--for Hauerwas this is the church--and sharing in the ongoing development of its history. Before turning to the theological critique of liberalism, however, it is noteworthy that some lawyers outside the church have also found the standard conception unsatisfying because its grounding in thin, procedural values cuts lawyers off from the moral resources that would give meaning to their professional lives. …